Friday, February 26, 2010

Copyright and Hello Kitty

I have a copyright question for you, in regards to the publication of artwork.

A very talented friend of mine has a business painting portraits of childhood toys. Parents (or generally nostalgic adults) send her their photos of favourite toys, dolls, plush animals, etc., and commission a beautiful expressionistic portrait on canvas. This business is growing, due to the quality of the artwork. She is now interested in putting together a book featuring this artwork, to submit to an agent. However, she's concerned there might be copyright infringent issues at hand, because so many of the subjects in these paintings are recognisable as commercially produced toys.

For instance, she knows that a stuffed 'Hello Kitty' toy is already protected by a world of trademarks and copyright laws. Would a painting of it create a minefield for a potential publisher?

Yes. I think it probably would. And there's something else you haven't mentioned: people have paid for these artworks. That means they own them. That means that the artist can't just put them in a book unless she has express permission from the owners of the artwork, especially as she's creating these works on commission - the owners of the toys (or their parents) have asked her to do the paintings, so they're not her original idea. Even if the toy isn't as recognisable as Barbie, the owners of the toy may not like having it depicted in a book.

Presuming that all of the toy/artwork owners have given permission, there could be issues of trademark (more trademark than copyright). I don't know intellectual property law as well as I used to, so I can't say what's allowable in terms of artwork. Some things are allowable if they're 'satire' but I don't know whether or not there are other exemptions - it's possible that if she'd painted Hello Kitty wearing a hula skirt it would be easier to put the painting in a book than a straight-up portrait. A straight-up portrait could be considered 'passing off'.

The best thing for your friend to do is to seek a legal opinion before she does anything else. She needs an opinion on her ability to reproduce the works and also on the content of the works. An intellectual property lawyer specialising in copyright and trademark should be able to help, and $300 or however much they charge per 6 minutes (joking! I'm sure you get at least 12 minutes for that much money) is, actually, not a lot to pay to either know she's in the clear or to avoid doing a large amount of work - putting the book together, submitting to publishers - for nothing. Why spend a lot of time worrying about it when you can pay a professional to put your mind at ease? Now, if I can just get an IP lawyer to sponsor this blog ...

5 comments:

Anne Bentley said...

I'm a little confused and a tiny bit horrified about a purchaser of an artwork being the owner - I own many works of art and if the artist publishes a likeness of their painting in a book even if I own the painting, the artist, surely, still owns the copyright to reproduce its likeness. The way you mention the artist having to ask the owner of the painting for permission sounds like the purchaser owns copyright. I understand that commissions may work differently according to contracts & agreements but it is not usually encouraged and I thought is mostly to do with photography. I understand that when a third party publishes a likeness of a painting, the artist and the purchaser are both credited (I thought that originated with providence tracing) but the artist having to ask... gosh
I am also an artist and I retain copyright of all my work. I now will seek out some advice so I really know where I stand.
Also, artists in Australia have benefited enormously from the work that NAVA (visual artists association)does,so they should be consulted for advice provided the artist has paid the very small membership fee ($50 for the whole year!). Then, of course there is the copyright council and the Arts Law Centre of Australia (artslaw.com)specialise in Arts Law (go figure).

Ivan said...

"people have paid for these artworks. That means they own them. That means that the artist can't just put them in a book unless she has express permission from the owners of the artwork"

As Anne points out, the artist will by default own the copyright of the work. Unless this is specifically transferred in the sale agreement, the artist does have the right to reproduce the image.

Zara Penney said...

I would say no to ownership of copyright by buyer. The copyright stays with the creator. Illustrators when they create for a publisher do not assign the copyright as ownership unless it is specifically stated. Copyright stays with the creator I am quite sure and would be very surprised by any variation on this. Educational publishers usually work on ownership of illustrator's artwork, but the artist signs over copyright in a statement or contract.

Length of ownership of copyright is varying from country to country. US is 70 I think. Australia is 50. You can google this.

The fact that your friend has painted articles - toys or otherwise. Similarly I would say the manufacturer owns the copyright on the product, but the artist, should she wish to use the object as a subject, then I would say she would be the owner of the copyright. It is no different to her sitting outside somebody's house and painting it. And the Diana Foundation tried to sue Franklin Mint over images of Diana being used, but lost. A person does not have a copyright over their own image.

Probably the publisher would have an opinion on whether they would proceed if they were worried about copyright. They'd have a lawyer and would probably take an opinion prior to publication.

But I'd say your artist would be free to publish her book.

I would say that artwork in somebody's collection, were that to be published, I'm not sure if it is a courtesy to acknowledge the owner of the original work. But I suspect that is a courtesy rather than a legal obligation.

Using logic, think of somebody at the Oscars being photographed in a Balenciaga. That person may be wearing the dress/outfit, but the photographer owns the copyright. The photographer's photograph cannot be reprinted without permission because that is a creator's artwork.

Commissions and anything that a creator makes, automatically owns the copyright until it is legally assigned to a new owner of their heirs.

TL said...

Warhol originally painted Campbell's Soup & Coke bottles as copies (before changing colours & making the look distinctly his own interpretation). I wonder how that would go today.

Anonymous said...

Hi all

An IP lawyer stopping by : check out s35(5) of the copyright Act at http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/framelodgmentattachments/052134D2FC16BEABCA25750F000D558F.

Provides: (5) Subject to the last preceding subsection, where:

(a) a person makes, for valuable consideration, an agreement with another person for the taking of a photograph for a private or domestic purpose, the painting or drawing of a portrait or the making of an engraving by the other person; and

(b) the work is made in pursuance of the agreement;

the first‑mentioned person is the owner of any copyright subsisting in the work by virtue of this Part, but, if at the time the agreement was made that person made known, expressly or by implication, to the author of the work the purpose for which the work was required, the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work.

It's not terribly logical I know, but that's copyright for you! Never assume.